Appeals court sends Measure 37 claim by Ralph and Norma Johnson back to Yamhill County

View full sizeRandy L. Rasmussen, The OregonianThe Oregon Court of Appeals reversed a Yamhill County decision that property owners who built 10-foot-by-12-foot homes in an attempt to bolster their claim had a "vested right" to complete their subdivision under Measure 37.

Case by case, Oregon courts are wading through the legal issues remaining from Measure 37, which raised the specter of sprawling rural subdivisions, and its successor Measure 49, which allowed most of the original measure's claimants to build a few homes.

In four recent rulings, courts have turned down property owners who maintained they had a "vested right" to complete large subdivisions they began under 2004's Measure 37. Under Measure 49, passed by voters in 2007 to reel in development claims, property owners could finish what they started if they'd spent enough money, done enough work, operated in good faith and met other standards.

In decisions so far judges have ruled that property owners' expenses weren't a sufficient percentage of the projects' total cost, even when they spent hundreds of thousands or more. In other cases, judges dismissed the argument that development rights granted under Measure 37 were contracts that could not be revised by Measure 49.

A noteworthy case decided by the Oregon Court of Appeals Wednesday involved a Yamhill County couple, Ralph and Norma Johnson, who built at least nine minimally legal, 120-square-foot homes in an attempt to show progress on a subdivision before Measure 49 took effect.

According to a court summary of the case, the Johnsons spent $1 million to develop the property and recorded a final subdivision plat before Measure 49 took effect Dec. 6, 2007.

A county hearings officer in 2008 said the Johnson's expenses were substantial and legitimately incurred, and a Yamhill circuit judge upheld the decision.

Neighbors and Friends of Yamhill County, a conservation group and branch of 1000 Friends of Oregon, argued to the Court of Appeals in May 2010 that the tiny homes erected on the Johnsons' property were plywood "shacks" or "placeholders." They described the work as a cynical attempt to get around the law -- especially since the subdivision's covenants, conditions and restrictions specified a minimum home size of 2,500 square feet. Anyone buying the lots, neighbors argued, would have to tear down the tiny homes to build much larger ones, or make them part of a gigantic remodeling job.

Neighbor Carr Biggerstaff said the Johnsons, in building the small homes, were not acting in good faith as required by Measure 49's vested rights provision.

The Court of Appeals did not venture much into the good faith argument, but reversed the circuit judge's ruling and sent the case back to Yamhill County for revision. The appeals court said the project's final cost must be determined in order to figure out if the amount spent by the Johnsons was a sufficient ratio of the total expense. The court did not dictate what the ratio must be.

Biggerstaff said he's optimistic. "We won this round and we'll see what the county does," he said.